Rajesh vs A.J. Raichel, C.K. Varkey and The New India Assurance Company Limited

Ramakrishna Pillai, J.—The appellant, a 23 year old head load worker who sustained injuries in a road traffic accident occurred on 3/1/2003, approached the Tribunal claiming a compensation of Rs. 3,00,000/- against which the learned Tribunal has awarded Rs. 1,73,900/- under various heads. Allegedly while the appellant was riding his motor bike, he was hit down by a tipper lorry which was coming from the opposite direction. He sustained very serious injuries and underwent treatment for 20 days. The adequacy of compensation is under challenge in this appeal.

We have heard the learned counsel for the appellant and the learned counsel for the 3rd respondent - Insurance company. We have also perused the impugned award.

Medical records reveal that the appellant sustained following injuries:

Lacerated wound over left parietal area

Blunt injury to abdomen with rupture of urinary bladder and colon.

Fracture to ileum

Fracture to 3 ribs with pneumothorax right side

Fracture to pubic rami right He was subjected to a laprotomy. Colostromy was done. Urinary bladder was also repaired. He had undergone treatment for 20 days.

Towards compensation for pain and suffering, the learned Tribunal has awarded a sum of Rs. 10,000/-. Considering the grievous nature of the injuries and the period of hospitalisation, we are of the view that some more amount could have been awarded under that head. Hence, we are awarding an additional sum of Rs. .10,000/- towards compensation for pain and suffering.

Undoubtedly the appellant might not have been able to do any work at least for a period of nine months and he might have been forced to take rest for a considerable length of time. Towards loss of amenities in life for the period during which the appellant had undergone treatment and had taken rest, the learned Tribunal has awarded a sum of Rs. 15,000/-. As we find that the said amount is inadequate, we are awarding an additional sum of Rs. 5,000/- on that count.

The accident was of the year 2003, the appellant is entitled to get by-stander''s expenses at the rate of Rs. 200/- per day. Hence, towards by-stander''s expenses for 20 days, (the learned Tribunal has awarded only a sum of Rs. 2,500/-) we are awarding an additional sum of Rs. 1500/- on that count.

The learned counsel for the appellant would submit that the appellant, being a headload worker was earning a monthly income of Rs. 5,000/-. To prove the same, the appellant had produced Ext.A23 certificate issued by the Headload Workers Welfare Board. But the same was not taken into account by the learned Tribunal. The learned Tribunal fixed the monthly income of the appellant at Rs. 2,000/-. As the accident was of the year 2003 and the appellant was only 23 years, it is reasonable to presume that he was earning Rs. 3000/- per month by engaging himself in any job or profession. Presumably the appellant might have been compelled to take rest at least for a period of nine months. He has to be compensated for loss of earning for a period of nine months at the rate of Rs. 3000/- per month. We notice that the learned Tribunal has awarded only a sum of Rs. 12,000/- as compensation for loss of earning. Hence, we are awarding an additional sum of Rs. 15,000/- on that count.

The appellant has produced Ext.A25 disability certificate which shows that he was having a residual disability at 22%. But the learned Tribunal has fixed the residual disability of the appellant at 10% which according to the learned counsel for the appellant is too low. The learned counsel for the third respondent, per contra, would submit that Ext.A25 was not properly proved and the learned Tribunal was perfectly justified in adopting 10% as the residual disability. Considering the grievous nature of the injuries sustained by the appellant, we are of the view that the percentage of disability could have been fixed at 15%. When the compensation for loss of dependency is calculated adopting the monthly income of the appellant as Rs. 3,000/- and fixing the percentage of disability at 15%, the appellant becomes entitled to get an additional sum of Rs. 51,000/-, as the learned Tribunal has awarded only Rs. 40,800/- under that head.

It was pointed out by the learned counsel for the third respondent that the learned Tribunal after awarding compensation for permanent disability has awarded a sum of Rs. 10,000/- as compensation for loss of earning capacity also. According to the learned counsel for the third respondent, the award is unjustifiable as the compensation for permanent disability covers the compensation for loss of earning capacity. We see considerable force in the argument submitted by the learned counsel for the third respondent and we are inclined to delete the amount of Rs. 10,000/- awarded by the learned Tribunal under the head of loss of earning capacity. Thus in total the appellant becomes entitled to get a sum of Rs. 72,500/-(82,500 - 10,000) over and above what was awarded by the learned Tribunal. The additional amount awarded under this judgment shall carry interest at the rate of 7% per annum.

The appeal is allowed. The impugned award shall stand modified as above.